Kitchener and Jessup

[2009] FamCA 1087

FAMILY COURT OF AUSTRALIA

KITCHENER & JESSUP [2009] FamCA 1087

FAMILY LAW – CHILDREN – Mother primary caregiver to 7 year old boy – Child placed with father firstly on interim, then on final basis – Concerns about mother’s parenting capacity – Child doing well with father – Limited supervised time with mother

APPLICANT: Mr Kitchener

RESPONDENT: Ms Jessup

INDEPENDENT CHILDREN’S LAWYER: Amber Buckland

FILE NUMBER: BRC 3748 of 2008

DATE DELIVERED: 12 November 2009

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Jordan J

HEARING DATE: 12 November 2009

REPRESENTATION

THE APPLICANT FATHER: Appeared in person

THE RESPONDENT MOTHER: Appeared in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr R Slade Jones

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Legal Aid Queensland, Brisbane

Orders

IT IS ORDERED

1. That all previous orders be discharged.

2. That the child, … born … January 2002, live with the Father.

3. That the Father have sole parental responsibility for decisions affecting the said child both long term and short term and shall inform the Mother of such long term decisions.

4. That the said child spend time and communicate with the Mother as follows:

   (a)supervised at a Contact Centre agreed between the parties but failing agreement at the W Contact Centre each twelve (12) weeks, for the maximum amount of time allowed by the Centre;

   (b)at such other times and places and upon such other terms and conditions as may be agreed to between the parties.

5. That within two (2) months, each party shall contact the Contact Centre and complete the intake at the Centre to allow supervised times spent with the child to occur.

6. (a)     That the Mother telephone the Contact Centre to arrange suitable dates for time to occur in each twelve (12) week period and, when advised of such dates, within forty-eight (48) hours advise the Father of the dates by receipted post.

   (b)That the Mother ensure that the Father receives four (4) weeks notice of any such dates.

7. (a)     That the Father purchase return airfare tickets for the Mother to spend time with the child in accordance with paragraph 4 hereof, at least one week before the time is to occur and advise the Mother of the flight details by receipted post.

   (b)    That the Father be discharged from his obligation to purchase such tickets should the Mother fail to attend upon any of the designated visits to spend time with the child.

8. That pursuant to s 65L of the Family Law Act, the compliance of the parents with these contact orders must, as far as practicable, be supervised by a Family Consultant nominated by the Manager, Child Dispute Services, Brisbane Registry, and such supervisor is to provide each of the parents with such assistance as he or she reasonably requests in relation to complying with and carrying out these orders.

9. (a)     That a passport issue for the said child upon application by the Father, notwithstanding the Mother’s consent has not been obtained.

   (b)That the Father provide to the Mother details of any overseas travel, including dates of departure and return and a proposed itinerary at least twenty-one (21) clear days before any overseas travel.

10. That the Mother, Father and the Independent Children’s Lawyer have liberty to apply on the giving of ten (10) days notice.

11. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kitchener & Jessup is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 3748 of 2008

MR KITCHENER

Applicant

And

MS JESSUP

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

1. This case was intended as the further hearing of contested proceedings between the parties in relation to the future care and living arrangements for their seven year old child, born in January 2002.  The final hearing proceeded for four days before me, commencing 8 December 2008.  I refer to and rely upon the contents of that judgment, which not only explains some of the history of the matter and provides an account of what unfolded before me, but this judgment is to be seen as an extension of that earlier judgment and together they form part of one final judgment, providing my reasons for the decisions I am now making in this matter.

2. The earlier judgment highlighted the seriousness of the issues in the case and the bizarre and concerning presentation and behaviour of the mother in those proceedings.  The mother has conceded in a subsequent affidavit filed on 7 April that the concerns expressed by the Court in December of 2008 were justified, and included in that affidavit the mother made the following statements:

   I know I behaved in an inappropriate manner during the trial…in reality I shot myself in the foot.  I am very embarrassed and resentful of the way I acted…I understand that I now need to demonstrate to the court that I can care for [the child] and myself.

3. At the earlier hearing, I made it clear that I had grave concerns about the mother’s personal functioning and parenting capacity.  The orders and notations I made were prescriptive and designed to facilitate further investigation.  The mother was left with only very limited and strictly supervised contact with her son after being the child’s primary carer throughout his life.  She was required to co-operate with the Court and the Independent Children's Lawyer to enable the further assessments to take place. 

4. The mother did file an affidavit as required and referred to by me earlier.  Some of the statements made in that affidavit represented some promising early signs.  In addition to displaying some insight into her own difficulties at the time, she described her efforts to see her son on 10 February and 10 March, and explained how she regarded those experiences as very positive for herself and the child.  She also explained in that affidavit that she was obtaining proper medical treatment, which she said produced positive benefits for her.  The problem for the mother and for the Court is that those efforts and that line of information appear to have come to an abrupt halt in about April of this year.

5. The mother today explained that she found the contact supervised at the Family Court as very distressing in terms of its shortness and the fact that she had to leave her son at the end of those periods.  She made a decision to discontinue her involvement in that process. 

6. I have the benefit of a report from the Family Consultant assigned to the case, Ms B.  She confirmed the first two visits and confirmed that the child appeared to enjoy his time with his mother, and that he continued to exhibit a warm and sound attachment to her. 

7. At the same time, Ms B did express some concerns about the mother’s presentation on each occasion.  On the first occasion, the mother saw fit to engage in inappropriate and severe criticism of the father in the presence of the child.  On the second occasion, Ms B observed that the mother was very flat in her presentation, which was similar to observations made by me from time to time in the earlier trial.  The mother sought to explain her presentation as being unwell, but Ms B queried whether it was a sign of depression and indicative that the mother was perhaps not following up appropriately on her medical treatment.

8. All efforts to arrange any further contact between the child and his mother since that time have proved to be unsuccessful. 

9. The mother was enjoying occasional telephone contact.  The father describes some of that in his material.  Sadly, the evidence he places before the Court indicates that the mother struggled to cope with telephone contact, and that at times she descended to hysterical behaviour and very abusive language.  He says that the child was greatly distressed by this type of telephone contact in particular on the last two occasions on 23 May and 30 May.

10. The father says that he was torn between complying with his obligations under the Court orders to provide contact on the one hand, and the very negative impact such contact was having upon his son.  In the end result, the mother has not availed herself of telephone contact since May, so that the child has not seen his mother since March and not heard from her since May. 

11. The mother has not filed any material since April.  The evidence would indicate that the mother has failed to properly instruct her solicitors, and has failed to properly engage them.  Ms B refers to the fact that the mother, whilst in Brisbane on the second visit to see the child, failed to keep an appointment with her solicitors.  The mother also failed to remain at the counselling session long enough to participate in an interview subsequent to the contact. 

12. It also emerged from the mother in Court this morning that her solicitors were requesting her to continue to undertake urine tests, no doubt for the purposes of gaining information that may have been of assistance to her case.  The mother rejected those overtures and she said that a falling out followed.  It seems clear that the mother’s failure to keep appointments and failure to accept advice, is at the core of the solicitors’ decision to withdraw from the matter.  She now appears unrepresented. 

13. One of the fundamental problems now confronting the Court is that, notwithstanding the mother was informing the Court in April of this year that she understood she was the author of much of the misfortune that fell upon her in December, and that she needed to take steps to demonstrate an improved capacity to properly function and care for the child, she has actively sabotaged the program put in place in some respects, and in others she has failed to assist her own case by co-operating with her lawyers, co-operating with the ICL, co-operating with the Family Consultant, or by placing any evidence before this Court.

14. The mother now stands before the Court today, having not seen her son for nine months, simply saying that she wants an order to have the child returned to her care. 

15. Sadly, despite what the mother said in her April affidavit, her exchanges in Court today indicate that she blames everyone other than herself for her current difficulties. 

16. In the absence of follow-up and in the absence of evidence, it could be agreed that the mother should lose by default and the father should be successful in his application.  However, such an overview would be both an over-simplification and unfair to the father in this case. 

17. There remain very serious allegations of abuse which are unresolved.  Without having formed any concluded views in the December hearing, I was concerned that the evidence, as it stood at that time, was capable of supporting a finding that the child had been a victim of some abuse or neglect.  The developments during that trial and the developments since that trial indicate that it will now be impossible and unnecessary to determine those matters which originally saw this case come before the Court.  It is unnecessary because nothing that has happened since December of last year would enable me to reverse the decisions I made in December of last year.  The concerns I had at that time have not been properly addressed. 

18. I should indicate that, through the Independent Children’s Lawyer, I have been provided with some medical evidence on behalf of the mother.  It is a report from a consultant psychiatrist, Dr H, who has been seeing the mother over the last 11 months.  Whilst, at one level, that report does provide some support for the mother’s position, and confirms an earlier assessment by Dr C that the mother does not suffer from any major psychiatric illness, the balance of the report and the tone of the report is otherwise unhelpful.  It seeks to argue about the decision the Court has previously made and blame the father for the Court’s decision on that occasion by suggesting that the mother has been denied by this Court of her natural right to a child, and suggested that that decision was brought about as a result of vindictive decisions made by the father.  Such propositions do Dr H little credit and render his document of limited assistance to this Court. 

19. In all other respects, the mother has failed to meet the test she set for herself in the affidavit.  I am none the wiser.  I know very little about her personal circumstances.  I am unable to judge if the mother is capable of caring for herself and for her son.

20. I remain unsatisfied about my ability to make proper assessments of the mother.  In layman’s terms, I continue to have reservations about the mother’s emotional well-being. There is continuing evidence about the mother’s inability to restrain herself in terms of her dealings with the father.  She appears to have an overwhelming hatred of him and an irrational tendency to hold him responsible for everything that has gone wrong in her life.  She continues to display a lack of insight into her own contributions for her difficulties.  One finds it difficult to escape the conclusion that the affidavit prepared by her in April was prepared by those advising her in the hope and expectation that the mother would understand and embrace the sentiments expressed in her own affidavit.

21. Whilst the mother was able to do so for some limited purposes, what she said in that affidavit is not consistent with her presentation and assertions, both in December of last year and today.  That is a very sad state of affairs because, like everyone else in this case, I have absolutely no doubt that the mother loves the child.  I fully appreciate that my decision last year would have been devastating and would have had a very adverse impact on what may have been an already fragile presentation.  It is sad for the child and sad for the mother that the reality is that the mother probably does not have sufficient insight into issues of cause and effect to understand that, to use her own language, she is continuing to shoot herself in her foot.

22. I take no pleasure from the decision I made in December and the decision I am about to make.  Through this judgment, I plead with the mother to carefully read, at least as a starting point, my judgment in December and my judgment today.  Whether she agrees or disagrees with what I have done or said, that is now the legal reality for her, and that is the framework within which she has to operate to try to turn this around. 

23. I know it is in the child’s best interests to maintain a healthy, meaningful relationship with a healthy mother.  She needs to demonstrate her commitment to the child, and she needs to demonstrate that she is, indeed, capable of committing to that relationship, and capable of conducting dialogue with the child, without seeing the need to attack the child’s father, because that is not going to help the child at all.  The mother has to do her best to suppress her strong feelings against the child’s father in all of her dealings with the child from this point on. 

24. As I said earlier, it would be unfair to the father simply to decide this case entirely on some default basis, because I do have before me evidence which indicates that the father has been motivated by concern for the welfare of his son and that, since he has been charged with the responsibility for caring for his son, he has done a very good job.  The information I have from the father, and from Ms B, indicates that the child has settled well in his father’s care, he is thriving at school and he is engaging in appropriate activities for a child of his age.  Importantly, he has settled in and embraced his new family life which, importantly, includes a relationship with his half-sister, L, who is five years of age.  No doubt he is experiencing confusion and hurt about the loss of his mother and the sudden loss of contact with her.  At the same time, he now has the benefit of an enhanced relationship with his sister and a closer relationship with his father. 

25. On the information I have available to me, I remain entirely convinced, firstly, that the only viable order is an order leaving the child with his father and, secondly, that such an order best promotes his welfare at this time in his life.

26. The remaining issue is, what can be done to try to preserve the important but diminishing relationship between the child and his mother.  As has been said during the course of this morning’s hearing, the future of that relationship may, in large part, continue to rest with the mother.

27. The father has expressed legitimate concerns about contact in the past, both physical and telephone contact.  He has demonstrated today his understanding of the importance, for the child’s sake, of continuing to try to preserve some relationship between mother and son, and he has demonstrated a willingness to co-operate with the Independent Children’s Lawyer to produce an outcome which may provide a framework for that to occur in the future.  He is willing to participate in intake processes.  He is willing to provide the child for contact and, importantly, is even willing to meet the necessary costs which will enable the mother to travel from New South Wales to Queensland to participate in contact in the future.

28. Can I make it very clear, as Ms B sought to do in her evidence, that it is essential that the mother appreciate that it is now up to her to make this work.  The child needs his mother.  The mother needs to make sacrifices to ensure that she will be prepared to take small steps to demonstrate to the child and to the father that she is able to commit to the exercise, and therefore provide the framework which may enable everyone to build on this modest start.

29. The Court understands how hard it is for the mother to be only allowed to have very short grabs with her son, and how distressing it must be for her to have to walk away from her time with her son after such a short period, and to engage with her son under the limitations that occur in a contact centre.  However, that is what she has to do for her son’s sake in the short term.  It is to be hoped that, in the longer term, these contact arrangements can be liberalised and eventually reach a situation where the child can have extended periods of unsupervised contact with his mother.  We are a fair way short of that position at this time, and the mother has to demonstrate, as she said in April, that she can accommodate the child’s needs in appropriate ways under the type of regime proposed by the Independent Children’s Lawyer.

30. I propose to make orders in terms of the proposals put forward by the Independent Children’s Lawyer. They were agreed to by the father and they were supported by Ms B. In my view, they find an appropriate balance between ensuring that the child is protected and ensuring that the child has the opportunity to maintain his relationship with his mother. This matter needs to be monitored. The Independent Children’s Lawyer has indicated a willingness to remain involved in the matter. Ms B indicated that she would be happy to continue to be involved with the family pursuant to a section 65L order.

31. In addition to the orders proposed by the Independent Children’s Lawyer, what I propose to do is to make an order for liberty to apply.  The mother, father and Independent Children’s Lawyer all have liberty to apply on the giving of 10 days’ notice.  That will enable the mother to approach the Court in the event that she wishes to extend her relationship with her son in circumstances where she is able to demonstrate that she has complied with the existing order and the child is benefiting from his contact with his mother and needs more.  It enables the father to approach the Court in the event that he contends that contact is not working or needs to be revisited, as the father and the child are also entitled to some certainty in the longer term.  It enables the Independent Children’s Lawyer to re-enliven the matter if she has concerns.

1. This matter will, of course, have to come before another Judge if it does return to this Court.  I regard this as a final judgment disposing of the matter as it has been before me.  The liberty to apply is a formal recording of the fact that the door of the Court always remains open in children’s matters.

2. I will make orders as per draft, subject to change when I have had time to better consider the terms.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Jordan

Associate: 

Date: